Sunday, November 20, 2016

It was lonely being a Donald Trump supporter in the legal academy. Of my thousands of colleagues teaching law in this country, I don't think more than a few dozen believed that he would have made a better president than Hillary Clinton, and not more than a handful of us were willing to go public with our support.

It has always been a risk to be a Republican teaching in a law school, where many teachers see a thin line between support for the GOP and bigotry or insanity. And yet, enough Americans liked what they saw in Trump to give him a smashing Electoral College victory.

How did it come about that law professors grew so out of touch with much of America?

To a hammer everything looks like a nail, and to a law professor everything is a problem in jurisprudence. Accordingly, it's my guess that the legal academy, over the past 80 years or so, began to wander too far from common sense, or, to be more precise, to depart from the essentials of the rule of law. Law professors forgot the most important notion that undergirds our legal system — the basic principle endorsed by the framers, that ours is a government of laws, not men (or women).

What this is supposed to mean is that we adhere to the original understanding of our Constitution and laws, and that if legal change is to be accomplished it is done not by judges or presidents, but by legislators or the American people, through constitutional amendments.

Since Franklin Roosevelt lambasted the U.S. Supreme Court for its "horse and buggy" definition of interstate commerce, however, the court, in recoil, has felt an obligation to rewrite the Constitution to meet the needs of the times, as the Supreme Court under Justice Earl Warren did with abandon, and as subsequent courts have done, most notably with Roe v. Wade and Obergefell v. Hodges.

The court has advanced the cause of human rights, undeniably, but at a cost of self-government by the American people.

This has been justified in the legal field through theories arguing that the Warren Court was engaged in teasing out "principles" of justice inherent in the Constitution, and, more boldly, by theorists who maintained that, at bottom, all law is politics.

A rear-guard action in the academy was maintained by those who lamented the Warren Court's failure to adhere to our tradition that the Constitution should be neutrally applied, without a thumb on the scale to implement policies favored by the justices. That view was best expressed by the late justice and former Chicago law professor Antonin Scalia, who ridiculed the idea of a "living Constitution" and maintained that the only valid jurisprudence was one that assigned law-making not to the judges but to legislatures. It is no coincidence that President-elect Trump singled out Scalia as his favorite justice. And it is probably no coincidence that President Barack Obama's executive orders stretched the law and Constitution to new lengths, often beyond the breaking points. He went to Harvard Law School in an era when critical legal studies, which challenge and overturn accepted legal norms and standards and practices, were at their zenith.

It seems to be well understood that some conservatives (I'm one) adhered to Trump early on because of the view that he would appoint a conservative like Scalia to the Supreme Court. But I can't help but wonder whether the many millions who voted for President-elect Trump also understood what the legal academy had all but forgotten, that what was at stake in the past election was nothing less than the rule of law and self-government itself.